NCAA anticipated to desk deliberate vote on identify, picture, likeness rights amid Supreme Court docket case, Senate modifications
The NCAA Division I Council is expected to vote on name, image, and likeness legislation scheduled for Monday, multiple sources told CBS Sports. The delay would stem from several legal challenges, a pending Supreme Court case, and changes in the White House and US Senate.
The NCAA Convention opens next week in a year that promises to be a transformative year for the 115-year college sports association. The NCAA must consider not only the NIL legislation but also the one-time transfer legislation this week while battling legal challenges on multiple fronts.
While the one-time broadcast rule is expected to be passed immediately, two senior NCAA sources told CBS Sports that they expect the vote on NIL rights to be tabled.
“I just don’t think there’s a rush to do anything [NIL] right now, “said Tom McMillen, a former congressman and head of the Lead1 Association, a group that represents Division I sporting directors.
“I think it could go in that direction,” Shane Lyons said of the vote. Lyons is a member of the NCAA Council and a West Virginia sports director.
Nothing will be certain until the 40-member council meets on Monday. The council is a 40-strong body responsible for the daily legislative and political decisions of the NCAA. It has a representative from each of the 32 conferences of Division I. The vote is weighted on the 10 FBS conferences and within these on the Power Five (ACC, Big Ten, Big 12, Pac-12, SEC).
When the FBS conferences vote as a group, they alone have the authority to vote as they control 56.3% of the voting items. However, the Power Five cannot decide the problem themselves. These conferences control only 37.5% of the total votes. If the agenda stays on schedule, the NCAA board of directors would consider ratifying the legislation on Thursday.
Casting the vote is a “large swath” of conferences preference, according to an NCAA council member who refused to be identified.
“Filing on Monday shouldn’t be an indication that it’s not going to happen,” that person said. “The tablet-taking on Monday is just taking a break to weigh all these significant bodies [with] their interpretation of what this should look like. “
“The NCAA gets hammered when we have nothing [with NIL]but it is that [Power Five conferences] That’s by far the top of the charge if it goes that way, “a senior source told CBS Sports.” If all 10 FBS conferences match, the weighted vote goes its way and the rest have no control over it. The [Power Five] has more power than the Group of Five, and the Group of Five has more than the rest of the other leagues. “
The main reason for filing the NIL legislation would be the Supreme Court case mentioned above. In December 2020, the United States Supreme Court agreed to hear the NCAA’s appeal against the Ninth Circuit Court’s decision allowing athletes to expand their education-related achievements.
The benefits offered by the lower court ruling would “effectively create a pay-for-play system,” argues the NCAA. In the extreme, it could be stretched to allow a school to buy a car for an athlete who lives off campus so they can go to school. In theory, this would be an education “tied” benefit.
The Supreme Court rarely hears cases related to college sports, which makes the decision even more urgent.
“Behind the scenes there have been a lot of rumors that the NCAA shouldn’t do anything about NIL until the Supreme Court rules,” a league commissioner told CBS Sports. “The thought is, why should we have policies and procedures in place when the Supreme Court hasn’t ruled? [the case]? Let’s hear what they determine and develop guidelines based on how they govern. “
Sources believe the case will be resolved no later than June, which would give the NCAA time to incorporate it into NIL legislation, which could go into effect August 1 for the 2021-22 school year. Such a schedule could also affect several state NIL laws that are scheduled to go into effect.
Most urgent for the NCAA in the near future is the implementation of the Florida NIL Act on July 1st. This bill would provide athletes with broader benefits than is currently being discussed by the NCAA. It is conceivable that schools in this state would have a recruiting advantage over schools outside of Florida.
“It’s about when the time is right [to approve NIL legislation]”Said Lyon.” Last year at the Congress, [NCAA president] Mark Emmert talked about how until January there was no question that we would make a decision based on legislative cycles. I don’t feel any different. However, a new problem has emerged, namely the decision of the Supreme Court. How does this affect us? Do we have to react now? “
Even if the council recommends the NIL legislation on Monday, the NCAA board of directors could delay implementation due to the numerous open questions.
“Even if we say goodbye to something on Monday, it’ll be a half-baked cake,” said one councilor. “It’s not fully baked. There are so many other things that could happen.”
Another consideration: After the runoff elections in Georgia, the Democrats got two additional seats in the Senate, a majority in that body and now full control of Congress. The NCAA’s NIL legislation should already take into account proposed NIL bills in Congress. However, the bills proposed by the Democrats in general offer athletes more benefits than any of the NIL laws proposed by the NCAA.
For example, Sen. Cory Booker (D-NJ) introduced the Bill of Rights for college athletes in December. It is one of four bills presented at the last session of Congress.
While NIL has bipartisan support in Washington, DC, the proposed bills – four that were introduced in the last six months – differ in how they will benefit athletes.
“The calculation [the NCAA has] what to do is that the political sand has shifted dramatically, “said McMillen.” I wouldn’t be surprised if they put it on the table and read a little more temperature on NIL. I don’t think they want to bring out something that is dead on arrival. I just think that will take a long time. “
The NCAA has previously stated that it needs an antitrust exemption from Congress in order to properly implement its version of the NIL. This exemption would ideally prevent the NCAA from being sued if any part of NIL legislation suggests limiting athletes’ compensation.
So, essentially, we got to that point. O’Bannon v NCAA alleged that the image of the former UCLA basketball player in a video game violated antitrust laws because the NIL bylaws prevented athletes from capitalizing on name, image and likeness. Other lawsuits arose from this action.
“The logic is that these things must be done before you can do anything [with a vote]”said this anonymous councilor.” There are two schools of thought. Do it now, make adjustments, and Congress will weigh it. The counter-argument to this is that you are running a much greater risk in Congress examining everything that is passed. “
After years of debate and the final elaboration of the NIL language by the NCAA, the NCAA Council should forward one of the NCAA’s most comprehensive legislative changes in philosophy to the NCAA Board of Directors for final approval. Athletes would be granted what was essentially theirs at birth, the ability to benefit from their fame and ability. The NCAA faced waning pressure to grant these rights, but it was clear that maintaining their restriction was part of the “college model” – the NCAA’s definition of amateurism.
If legislation is delayed, there will undoubtedly be criticism. The NCAA has long promised changes and even suggested that the association lead the NIL exam. In September 2019, Emmert described NIL as an “existential threat” to this collegial model.
“Just because something could be submitted or the action could be postponed [it] doesn’t mean no action can be taken in the coming months, “a source related to the lawsuit told CBS Sports.
The NCAA has not yet selected a third-party administrator to monitor NIL. Part of this company’s duty would be to set market standards for compensation. However, if the NCAA even suggests capping athletes’ income, it could go straight to court and lead another antitrust lawsuit. The NCAA delayed the selection of this third party administrator twice, possibly due to NIL complications it is currently facing. It also needs to mess up the interactions of athletes with agents in the new NIL world.
“The Supreme Court could come out and say, ‘The NCAA’s model is fine,'” a source said. “There is much [discussion] between ADs and commissioners. They say, “Let’s hold the phone, do nothing, and even hire a third party company until we really know what’s ahead.”
There were more concerns as the U.S. Department of Justice weighed in on Friday. USA Today reported that Assistant Attorney General Makan Delrahim was concerned that the NCAA’s approach to NIL “could raise antitrust concerns”.
Delrahim is a Trump administration agent who has 11 days left on the job. He told USA Today that these views may be transferred to the Biden administration. A speech Delrahim gave at Notre Dame Law School in 2018 highlighted his antitrust concerns about college sports.
The Sherman Antitrust Act came into effect in 1890. It prohibits companies that “improperly restrict trade or business”. The Sherman Act has been used several times in sport to regulate fair play and organization.
In that speech, Delrahim said he hoped “schools will consider making full efforts to fund athletes’ educational costs”. NIL would promise more. One company estimated Oklahoma quarterback Spencer Rattler’s social media earnings potential ahead of the 2020 season at over $ 700,000. That was before Rattler even snapped a snapshot as a starter for the Sooners.
“”[NIL] will be the most talked about, dynamic topic in the room, “said a councilor of the agenda on Monday.